another TDS query..agent or landlord responsable for TDS issue?

[iconic558]

thanks in advance!....there are so many TDS issues on here, thanks for taking the time to take a look at this one!

 

I just wish to clarify whom is the responsable party for ensuring out rental deposit has been placed in a scheme? Maybe too much info here, but too much is better than too little, just use what you want and ask for more if required:)

 

 

Notes:

 

1/ We took the rental on over a year ago, short term let, we then took another 6 months, then month by month whilst we wait for the house we are buying to be finalised...we never signed another contract after the first one.

 

2/ Advertised thru letting agent.

 

3/ All upfront money, as in 3 months rent in advance AND deposit paid to letting agent...there is a clause in the contract saying it is the duty of the landlord to place the deposit in a TDS. We have receipt that our money was received by the letting agent...with thanks!

 

4/ Management of rental by landlord from that point forward.

 

5/ All corospondance has to go thru the original letting agent as the landlord lives abroad and will not give an address.

 

6/ The landlords building society think he still lives in the rental, and do not know it is being let, and we still keep getting all manner of post for the landlord and his wife.

 

7/ We have had countless phonecalls, face to face conversations with the landlord and letting agent asking where the deposit is?

We sent letters to the letting agent and landlord, but no joy....only that the letting agent says it is the responsability of the landlord to ensure the deposit is placed in a scheme. The only response we ever got from the landlord was "yes I have" to "ohh, I need to get around with that" back to "yes I have".

 

8/ There is NO record of our deposit being in any TDS, the landlord has never sent details of TDS references, and we are leaving in 2 weeks time!

 

9/ Take this as you will, we know the landlord has some serious money issues, I know this is not necessarly an issue but it makes me even more nervous....I don't believe we will ever see the money.

 

 

Question:

 

I need to clarify who is responsable for the deposit? I think it is the letting agent but am not 100% sure....we gave the deposit to the letting agent.

If so, if we need to go to court, just whom do we take to court....the business, or an individual from the business?

[iconic558]

no suggestions guys?

[Bry2020]

Sorry to hear your having headaches with your deposit.

 

Its the person who is holding the deposit that is the one who needs to protect it.

 

Often the deposit is transfered from the tenant to the agency and then from the agency to the landlord.

 

If the agent holds the deposit in their account for the duration of the tenancy then it is the agent that needs to protect the deposit with TDS.

 

If the agency intends on transferring the deposit to the landlord then they should have it in their terms of business (between agent and landlord) that the landlord is respondible for the protecting of the deposit in either TDS or one of the other two schemes.

 

Once the landlord receives the deposit, they have 14 days to protect it. the landlord should also ensure that you are sent 'prescribed information' about where your deposit is protected.

 

In your contract with the agency should be the terms about the TDS scheme - who is holding the deposit, what is to be done with the deposit at the end of tenancy. The reason why it is written here is because with TDS (in comparison to the other two schemes) their 'prescribed information' can be integrated into the tenancy agreement itself. the other two schemes Mydeposits and DPS have different rules.

 

TDS give guidance to agencies as to what info should be entered into tenancy agreements. TDS also give guidance on what should be in the contract between the agency and landlord (terms of business).

 

Here is the link to the PDF info from TDS:

http://www.thedisputeservice.co.uk/resources/files/TDSA-Rules-of-Membership-Edition-4.pdf

 

 

It sounds like in your tenancy agreement the TDS scheme prescribed information is there. The agreement also suggests that the landlord is the one that is responsible for protection.

 

Therefore it is the landlord that is the one who should respond to you with the details of the scheme they have chosen. They may have chosen any of the three schemes.

 

The agency may have protected your deposit as a matter of course as soon as they received it, before transferring to the landlord (to protect themselves). Even so, the landlord must protect the deposit within 14 days of receiving it.

 

If the landlord has not protected it, and you have moved out of the property they will not be able to protect it as the 3 schemes would not allow this once the tenancy has ended.

 

If the landlord is still holding all or part of your deposit, then you have a strong case to sue for the return of the deposit plus 3x the deposit as a fine for non-compliance.

 

If the landlord has returned all of your deposit then there is a chance that a judge may not award the 3x fine - this could go either way, some win, some lose.

 

You should find out in writing (email or other) from the agency whether it is them or the landlord who is holding the deposit.

 

 

You should seek legal advice if unsure.

If the court awards in your favour (deposit + 3x deposit) then the landlord has 2 weeks to pay up. If he doesnt pay then you can use various methods to enforce the judgement (get the money). One method is to put a charging order on his property. This means that if the property is sold, then you get your money.

 

The address of the landlord should be on tenancy agreement. This is your 'last known address' of the landlord. Its this address that you should use for the defendant when filling in the claim form to send to the court.

If you have no other addresses, the use the agencys address as this is your last known address of correspondance.

Failing that there is an argument to say you can use the address of the actual flat you rented. You'd need to look into that to be sure. I'd choose the address of the agency.

 

You can also go to the land registry website, pay £2 and find out who is legal owner of your flat. This would give more info about the landlord.

 

Some people put the agency and the landlord on the claim form and let the judge figure it out.

 

Hope this helps you.

 

cheers

Edited May 12, 2010 by Bry2020

[iconic558]

many thanks for the reply.,

 

....nothing yet regarding deposit scheme, taking your advice I think we may just put the landlord and the agents on the court order if it comes to it...hope it doesn't though but not holding out any hope now, but I will be happy with the just the deposit back.

 

again, many thanks for the help